Archive for month: July, 2019

Almost every wage and hour lawsuit and Labor Commissioner claim that I’ve seen in the past 10 years has included a claim for missed meal and/or rest breaks. Employers who fail to provide at least one half-hour unpaid meal break whenever an employee works more than 5 hours is liable for one hour’s pay at the employee’s regular rate of pay. As Kaanaana v. Barrett Business Services, Inc. reveals, the “premium pay” is not the only liability.

Sometimes the employer has no record of the hours worked. This is problematic because the Labor Code and the Wage Orders require employers to maintain accurate records of the hours worked, including the times when lunch breaks begin and end. When an employer fails to maintain accurate records of the hours worked, the employee’s testimony alone is sufficient to establish the number of hours worked. This means an employee who testifies she did not receive a full half-hour lunch break will likely carry the day unless the employer has specific evidence to rebut the employee’s testimony.

Sometimes the employer allows employees to take the lunch but does not require the employee to clock out for lunch breaks. Instead, the employer automatically deducts a certain amount of time from the employees hour. This is problematic because the time records are not accurate, which means we default to the employee’s testimony. We have no way of showing how long the break lasted. The court may be required to base its decision on the employee’s testimony.

But what happens when the employer records show the employee clocking in and out for lunch, but the meal break is less than the full 30-minutes? In Kaanaana, the time records showed the employee breaks oftentimes were only 26-minutes because the supervisors gathered the workers before the break ended to ensure they were back at the line within 30 minutes.

The employees filed a class action lawsuit alleging they were owed the premium pay under Labor Code 226.7 because they did not receive the full 30-minute meal period. The employees also argued that because the meal period was “truncated,” it was an “on-duty meal period,” and the employer should pay for the entire 30-minute meal period. The employees sought liquidated damages under Labor Code 1194.2 for failing to pay minimum wage for the entire meal period and “waiting time” penalties under Labor code 203 for failing to pay all wages owed at the end of the employment. Finally, the employees sought PAGA penalties for the missed meal breaks.

The employer argued the employees were only entitled to the premium pay. Barrett Business Services argued the few minutes missed were de minimus, and therefore not compensable.

The court concluded the employees were not entitled to payment for the entire meal period, but were entitled to payment for the 3 to 5 minutes they actually worked during the meal period:

the right to be free from employer control for a 30-minute meal period, and the right to be paid for time worked during that meal period, are distinct rights with distinct remedies. The remedy for an employer violation of the former right is the hour of premium pay provided under section 226.7. The remedy for the latter is payment of wages for time worked (see § 1194), along with any applicable penalties for the failure to pay for time worked when the wages were due. But we find no persuasive basis in legal authorities to support plaintiffs’ claim that their remedy for time worked during the meal period is payment of wages for the full 30-minute meal period, rather than payment of wages for the three to five minutes actually worked.

While acknowledging that the Wage Order could be interpreted to require payment for the entire meal period, the court believed “that a truncated meal period, such as occurred in this case, is not in every case the equivalent of an on-duty meal period.”

The court determined the employees could recover liquidated damages for the 3 to 5 minutes the employees worked during the lunch break, and the employees could recover waiting time penalties since the employees worked time (albeit just a few minutes) without compensation.

The court remanded the case back to the trial court to determine what PAGA penalties to award, but reminded the court that the court could award less than the full PAGA penalties “if, based on the facts and circumstances of the particular case, to do otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory.”

In February 2019, the California Supreme Court granted review of Kaanaana v. Barrett Business Services, Inc., but on a different issue.

I have some suggestions for employers that want to avoid meal break problems, or at least provide a defensible position if a dispute arises:

Make sure employees are afforded and take the full 30-minute meal period.

Never automatically deduct time from an employee’s record of hours worked. Only deduct time if the employee confirms (preferably in writing) the employee forgot to clock out.

Never require employees to return to work from their breaks early. Err on the side of granting more time than required.

If you have questions about implementing or enforcing appropriate workplace policies, or if you believe your company is not complying with the law, the Nuddleman Law Firm, P.C. represents employers and employees in variety of employment matters including meal and rest break claims. Contact our office for more information.

Original Article by Robert Nuddleman of the Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

The ABC Test established by Dynamex made it difficult for employers to classify workers as independent contractors for claims “under the wage orders.” But what does that really mean? Which cases are “claims under the wage orders?” Not surprisingly, the Labor Commissioner takes a very broad view of the ABC test’s applicability.

The Labor Commissioner oftentimes issues opinion letters on various topics within their jurisdiction (i.e., wage and hour questions). Courts are not required to follow the Labor Commissioner opinions, particularly when the Labor Commission changes its position on a topic, but most courts will at least afford the opinion some weight.

Earlier this year the Labor Commissioner issued an opinion regarding “Application of the “ABC” Test to Claims Arising Under Wage Orders.” The opinion discusses (or at least mentions) many of the cases interpreting the ABC test since Dynamex. Even if courts don’t follow the opinion letter, the Labor Commissioner will most certainly follow its own decision.

The Labor Commissioner points out that “Dynamex ties application of the ABC test to enforcement of obligations imposed by the wage orders.”

Because wage order provisions are not independently actionable (see Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1132), the “obligations imposed by a wage order” do not appear only in the wage orders themselves. Wage order obligations are also imposed by certain Labor Code provisions, which serve to enforce the wage orders. In such cases, the IWC employer definitions are imported into the Labor Code provision.

[fn4] Some Labor Code provisions expressly reference the substantive standards of the wage orders. (See, e.g., Labor Code section 1197 [”The minimum wage for employees fixed by the [JWC] or by any applicable state or local law, is the minimum wage to be paid to employees .. .”]; section 1198 (”The maximum hours of work and the standard conditions of labor fixed by the [IWC] shall be the maximum hours of work and the standard conditions of labor for employees.”]; section 226.7 [“An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the [IWC] …”].)

The Labor Commissioner then sets out the types of claims that involved enforcement of obligations imposed by the wage orders:

“But wait,” you may be saying, “didn’t Dynamex specifically exclude expense reimbursement claims from the ABC test?” No, it didn’t. The drivers challenged which test was applicable to their 2802 claim “insofar as that claim seeks reimbursement for business expenses other than business expenses encompassed by the wage order.” The issue of which test applies to expense claims other than those encompassed by the wage order was not before the court. To the extent the expense reimbursement claim is related to expenses encompassed by the wage order, the ABC test still applies.

The following quotes and cites from the opinion letter will hopefully clarify the Labor Commissioner’s view of which tests apply to which claims:

Dynamex and decisions following it have applied the ABC test to Labor Code sections enforcing minimum wage, overtime, meal and rest breaks, and itemized pay stubs.

We will have to wait and see how the court and the legislature refine, limit or expand the ABC test. For now, the conservative approach means that employers in California should treat workers as employees–at least for wage and hour purposes–unless the hiring entity can prove each of the following factors:

(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

If you have a question about classifying your workers, or if you believe you were incorrectly classified as an independent contractor, contact the Nuddleman Law Firm, P.C. Robert Nuddleman helps employers and employees comply with and enforce employment laws in California.

Original Article by Robert Nuddleman of the Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

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